Ирвинг против Липштадт

Judgement

Hitler's knowledge

6.46 As I have already said, Irving's stance on this issue fluctuated as the trial proceeded. In course of his own evidence, having advanced a number of reasons for doubting Hitler's knowledge of any systematic programme for the killing of Jews in Russia or elsewhere in the eastern territories, Irving conceded under cross-examination that it was a legitimate conclusion that the shootings in the east were carried out with the knowledge and approval not only of Heydrich but also of Himmler and Hitler himself. He accepted that the reports of numbers killed were sent by the Einsatzgruppen to Berlin on a regular basis. Irving said that he had been unaware until the summer of 1999 of the Muller document of August 1941, according to which Hitler asked for reports from the Einsatzgruppen to be supplied to him. But he conceded that the evidence now available points to there having been a coordinated and systematic direction by Berlin of the killings on the eastern front. In particular Irving accepted in the light of the note in Himmler's appointment book for 18 December 1941 that the massacre of Jews in the Ostland was carried out on the authority of Hitler. He also accepted that there had been a systematic programme for the shooting of Jews and others of which Hitler was aware and which he approved.

6.47 But in the course of his cross-examination of Longerich, Irving put to him a large number of questions which appeared to suggest that it was his case Hitler had no such knowledge and that he did not authorise any such programme or policy. He pointed out that no document has come to light indicating that Hitler expressly authorised the shootings. In the course of his cross-examination Irving advanced various arguments why it would be wrong to suppose that Hitler was complicit in the shooting of Jews and others in the period 1941-2. Irving contended (and Longerich agreed) that prior to the middle of 1941 there is no directive emanating from Hitler that Jews are to be exterminated. Thus there is no indication in the in the instructions or guidelines issued by Hitler to General Jodl and to the High Command Operations staff on 3 March 1941 that Jews are to be executed when the Russian campaign begins. Irving argued that these instructions, as well as the guidelines issued in October 1941, should be seen as purely military measures. Hitler was addressing the issue of military discipline and not authorising or condoning ideological extermination. He was in effect saying that that the Reich was facing a Judaeo-Bolshevik enemy which must be destroyed as a matter of military necessity. No order was issued by Hitler which explicitly said that the Jews must be killed systematically. Moreover, contended Irving the initiative for the orders came from the Nazi High Command rather than from Hitler.

6.48 As to the "special responsibilites" which Jodl directed were, in accordance with Hitler's order, to be given to Himmler, Irving suggested that this flowed from Himmler's wish to enlarge his area of responibility. He claimed that Hitler's attitude was to give Himmler carte blanche without any requirement to let him (Hitler) know what he was doing. In any event, argued Irving, Hitler was concerned for military as opposed to ideological reasons to ensure the security of the area to the rear of the Nazi army as it advanced into Russia. Longerich disagreed: the military and the ideological goals cannot be differentiated.

6.49 In relation to Hitler's various statements in the spring of 1941 to the forthcoming "war of destruction" and the "extermination of the Jews", Irving pointed out that the Nazis were about to embark on Barbarossa, so that these utterances must be seen in a military, rather than an ideological, light. Moreover Hitler was well aware of the ruthlessness of which the Red Army was capable and was issuing a warning what the war would entail. The response of Browning to this proposition is that the campaign had both a military and an ideological objective.

6.50 Irving cast doubt on the Defendants' contention that the Einstazgruppen were set up as a consequence of the preparations laid down by Hitler. Their existence came about, he suggested, "like an act of spontaneous combustion".

6.51 Irving devoted a considerable amount of time to casting doubt on the authenticity of the document dated 1 August 1941 claimed to evidence an instruction by Muller to furnish Hitler with reports of shootings. He pointed out that the document before the Court is no more than an Abschrift: the original is missing. It bears the modest security classification geheim (secret) which is inappropriate for a document related to the Final Solution. Irving produced a letter from the German Federal archives that the document is not to be found in the file from which it purports to come. The Defendants countered this claim by pointing out that the document has been known about and accepted as authentic for twenty years. Copies of the Abschrift are to be found in the Moscow archive as well as in the Ludswigsberg archive. They were also able to point to several documents of a similar sensitivity which were also classified geheim. The reason why no copy of the Muller document was found in the file referred to in the letter from the German archivist is that the wrong file number was quoted. Longerich is in no doubt that the document is an authentic copy of the original. Ultimately Irving accepted its authenticity, although he continued to express considerable misgivings about it.

6.52 In the end Irving took the position that he did not challenge the authenticity of the Muller document. He submitted, however, that since its existence was unknown to him until he was presented with the document in the course of cross-examination, no criticism could fairly be made of him for not taking it into account. The Defendants were unable to accept this evidence. The reasons are, firstly, that the Muller document is set out at page 86 of Fleming's work Hitler und die Endlosung. Irving's marked copy of that book appears to show that he has read the passage at page 86 (although Irving denied it). The second reason is that Fleming gives a reference to the archive where the document can be found in Munich. The third reason is that, when asked about Fleming's book in 1983, Irving answered that it was "a lie". In his evidence Irving claimed that he was basing what he said on reviews of Fleming's book.

6.53 Irving argued that the Muller document does not in any event have the significance for which the Defendants contend. It did not require the Einstazgruppen to report shootings to Hitler. As its heading and text indicate, it related solely to the procuring of visual materials such as placards and photographs as part of the groups' intelligence-gathering operations. Despite this both Browning and Longerich persisted in their contention that the reporting requirement embraced all the activities of the Einsatzgruppen including shooting. But they agreed that this document is the only one to which he can point as evidence for the proposition that Hitler was kept informed of the shootings. Irving stressed that, apart from Event Report no 51, no report has come to light which has been retyped in the large type which Hitler's eyesight required.

6.54 Further evidence relied on by Irving for Hitler's unawareness of any systematic programme of extermination is the entry in Himmler's telephone log for 30 November 1941 relating to a telephone call made by him for Hitler's bunker to Heydrich in Prague. I have already referred at paragraphs 5.97-8 and 5.104 above to the argument which Irving bases on this entry.

6.55 Irving advanced a similar argument in relation to the message sent on 1 December 1941 by Himmler to Jeckeln, the SS chief stationed in Riga, following the shooting of the trainloads of German Jews on arrival in Kovno. This is dealt with at paragraph 5.107-8 above. Browning and Longerich place an opposite interpretation on the Himmler's message to Jeckeln: it was reprimanding Jeckeln for the shooting of the Jews who had arrived in Minsk the previous day from Berlin. Longerich agreed that the message indicates that Jeckeln had exceeded his authority but suggests that so modest a punishment indicates that Himmler was not unduly concerned by the murder of so large a number of Jews. Longerich agreed that the killing of German Jews ceased for some time afterwards. He did not, however, accept that the fact that Jews took provisions with them on the train indicates that there was no intention to kill them. The Jewish Commission paid for the provisions and no doubt the Jews were deceived into believing that they were being taken to a new life in the East. Browning argued that the message, relating as it does to killings in Riga, indicates that the shooting of the Jews in Kovno had been authorised (which is why Jeckeln was not disciplined). Browning claimed that there had been a change of policy afterwards because of the concern felt about German Jews being killed. The guidelines enunciated the new policy.

6.56 In relation to Himmler's appointment book entry for 18 December 1941, Irving accepted that it this context ausrotten means "annihilate" but he quarrelled with the translation of als Partisanen as "to be annihilated as partisans", contending that it really means "as partisans", that is, annihilated because and to the extent that they are partisans. Browning retorted that the primary meaning of als is "as" and that the policy was clearly not to shoot only Jewish partisans because the records show that thousands of women and children were also shot. In relation to that note Irving in the course of his cross-examination of Longerich made for the first time the further suggestion that Himmler may have made the notation als Partisanen auszurotten, not because that was something that he and Hitler had discussed and agreed upon, but rather because it had for some time been Himmler's standard attitude that Jews should be exterminated as partisans. Himmler had expressed that view on previous occasions. So, Irving argued, the note expresses no more than Himmler's own view and does not implicate Hitler. On reflection Irving did not pursue this suggestion. Later in the cross-examination Irving fell back upon the suggestion that the issue was discussed between Himmler and Hitler but that the initiative for shooting the Jews as partisans came from Himmler and not from Hitler. He argued that this is consistent with the passive attitude which Hitler adopted towards the Jewish question.

6.57 Irving pointed out that in a number of their reports the Einsatzgruppen give pretexts for killing Jews. This, argued Irving, is inconsistent with a policy of killing Jews indiscriminately. But Longerich met this suggestion by referring to the so-called Jager report of Einsatzkommando 3 of 1 August 1941 that large numbers of Jews (including many women and children) had been executed without any excuse or pretext being given.

6.58 Irving did not initially accept that the endorsement vorgelegt on report no. 51 of 26 December 1941 meant that Hitler read the document. He asked why else would it be laid before him twice (as the endorsement suggests it was). The Stalingrad crisis was at its height at this time. But later he agreed that it was highly likely to have been shown to him. Irving conceded that it followed that Hitler was to that extent implicated in the murder of 363,000 mentioned in that report.

6.59 When objection was taken on behalf of the Defendants to this sustained line of questioning on the ground that Irving was resiling from admissions he had previously made in cross-examination as to the state of Hitler's knowledge of the shooting, Irving agreed to set out his case in writing. Irving thereupon took the position that, in regard to Eastern European and Russian Jews, Hitler had authorised the summary execution of unspecified numbers of Jewish/Bolshevik intelligentsia and leaders; that Hitler was probably informed of "anti-partisan" operations, though not on a regular basis; that there is evidence that no secret was made of the inclusion of large numbers of (non-German) Jews in the resulting body counts of "partisans". As regards Western European and German Jews, Irving's restated case is that there is no clear or unambiguous evidence that Hitler was aware of any mass murders.